Justice Department appeals ruling protecting transgender workers

On behalf of The Law Office of Michelle Cohen Levy, P.A. posted in Workplace Discrimination on Thursday, November 1, 2018.

In 2016, a three-judge panel of the Sixth Circuit Court of Appeals ruled unanimously in favor of a transgender woman who was fired from her funeral home job after announcing her transition. The appellate panel said that "discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender or transitioning status, is illegal under Title VII" of the Civil Rights Act of 1964. Title VII, one of our main civil rights laws, prohibits employment discrimination because of race, color, national origin, religion or sex.

Now, the U.S. Department of Justice has decided to appeal that ruling to the U.S. Supreme Court. Its two main arguments are that the term "sex" does not imply gender identity, and that the funeral home would have been within its rights to fire the woman for religious reasons.

The woman had worked at the Michigan funeral home since 2007, with her most recent position being as funeral director. She was fired in 2013 when she told the home that she was planning to undergo gender reassignment surgery while on vacation and, when she returned, she would wear the uniform required for female employees.

The DOJ asserts that the Sixth Circuit wrongly concluded that the woman was fired on account of her sex because she was actually fired for her gender identity and expression. The agency claims that the term "sex" as used in Title VII does not include the concepts of gender identity and expression but merely refers to a person's biological gender.

That said, the Equal Employment Opportunity Commission and some courts have already determined that firing someone for failure to conform to gender norms and stereotypes is indeed sex discrimination under Title VII.

The DOJ further contends that the funeral home had every right to fire the woman because being forced to work with her would have interfered with the home's "ability to conduct business in accordance with its sincerely held religious beliefs."

However, the funeral home apparently did not refer to religion when explaining why it had fired the woman. It claimed that allowing her to present herself as a female would have "disrupted the grieving and healing process" of their clients and would have forced female staff and clients to share a restroom with the woman.

A spokesperson for the Center for Inquiry commented that the Trump administration "cannot wait" to take advantage of an apparently religious, conservative majority on the Supreme Court in order to roll back protections for the LGBTQ community.

Do you think the concept of "sex" includes aspects of gender such as compliance with gender norms, gender identity and sexuality?

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.